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The new immigration reform package pending in the U.S. Senate includes a proposal to kill quietly the controversial streamlining regulations applied to the Board of Immigration Appeals in 2002 by former Attorney General John Ashcroft. Streamlining is not the only thing up for change. Attorney General Alberto Gonzales added three immigration appeals judges in April, increasing the number of BIA appeals judges who review the work of 220 immigration judges nationwide from 11 to 14, although that total is still less than the 23 before Ashcroft’s cuts. Gonzales also replaced embattled chief immigration judge Michael J. Creppy with a new judge to oversee the system. In just 15 pages of the 614-page immigration reform bill, Senator Arlen Specter, R-Pa., calls for adding at least 20 new immigration judges, 50 immigration lawyers and at least 50 new federal prosecutors nationally assigned to immigration cases. The bill would also restore the BIA to 23 appellate judges, essentially repealing the cutbacks made by Ashcroft in 2002. “There has been dissatisfaction with streamlining since 2002,” said David Martin, formerly general counsel to the Immigration and Naturalization Service in the Clinton administration and currently a University of Virginia law professor. The new bill will change streamlining, he said, “and I think that was part of the plan.” Streamlining regulations expanded significantly in 2002 to reduce the backlog of 56,000 pending cases. The regulations allowed one appeals judge, rather than the usual panel of three, to decide cases without opinions, often in one-paragraph orders. When Ashcroft cut the number of BIA judges from 23 to 11, he eliminated many who were considered too pro-immigrant, according to immigration court experts. By March 2003, 38% of the BIA decisions were summary rulings, compared with 9% just one month earlier, according to a Los Angeles Times study at the time. Federal appellate judges around the country have repeatedly complained about incoherent and biased rulings by immigration judges that are simply passed through the BIA with perfunctory, one-page affirmances. Practitioners have also complained of abusive immigration judges with little or no discipline system at the Executive Office of Immigration Appeals [NLJ, Jan. 30, Feb. 6]. The flurry of changes in the last two weeks are not part of a larger plan to reform the troubled immigration judge corps, which is part of the Justice Department, according to Charles Miller, Justice Department spokesman. Gonzales, who initiated an internal review of immigration judges following criticism by practitioners and the federal appellate bench, has not yet issued the results of the investigation. The recent reshuffling has nothing to do with the internal review, according to Miller. There is no time set for its release, he said. Lory Rosenberg, a former BIA judge and currently in private practice at Paparelli & Partners in Rockville, Md., said that adding more appeals judges is good, but she said she is concerned that this is “an end-run effort to clean up their act and not be under the imposition of something coming down from Congress.” Three-judge panels Under the Senate bill, the presumption is to return to three-judge panels and to limit the use of one-judge summary rulings to “insubstantial” cases that are controlled by existing law or that do not raise novel fact situations. Section 702(g) and (i). Streamlining also curtailed the BIA’s ability to re-examine the factual findings of immigration judges, known as de novo review. That power would may be codified in the new bill. Stephen Yale-Loehr, who teaches immigration law at Cornell Law School, called the changes “a mixed bag. It is hard to know how [the legislation] will play out.” He pointed to seemingly conflicting sections on de novo review that in one sentence call for BIA judges to accept immigration judges’ application of the law to fact unless “clearly erroneous,” but in the next says the BIA shall review de novo questions of law. “The Senate staff tried to do as much as they could with limited time. There was just one hearing on this. It would help if [the Senate] slowed down to think about each provision,” Yale-Loehr said. Martin said it is a gamble whether the changes will be satisfactory and bring the rate of appeal to the circuit courts back to a more normal level.

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